A Constitution for All Times

7. The Wages of Watergate

It has now been more than 40 years since the Watergate break-in, which precipitated modern efforts to respond to the dangers of unfettered political spending . Yet our political system is now more awash than ever in secret money. Why? Much of the answer lies in the interaction between Supreme Court decisions and post-Watergate reforms. In the wake of the scandal, the 1974 amendments to the Federal Election Campaign Act (FECA) sought to limit both political contributions and expenditures. But in its foundational decision in Buckley v. Valeo (1976), a challenge to the FECA amendments, the Supreme Court drew a sharp distinction between these two forms of political spending. It upheld stringent 7. The Wages of Watergate  a constitution for all times limits on contributions to other people’s campaigns, on the theory that these limits mark a reasonable response to the potential for quid pro quo corruption or the appearance of corruption. But the Court refused to limit political expenditures, on the theory that “the First Amendment denies government the power to determine that spending to promote one’s political views is wasteful, excessive, or unwise.” In drawing this distinction, the Court created a statute that no sensible legislature would have passed. Buckley accelerated two existing unhealthy trends in American politics. First, it gave a decided advantage to rich candidates : they could spend unlimited amounts of their own money while their opponents had to raise it in relatively small increments. The Roberts Court exacerbated this problem with its 2011 decision in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (a case whose name sounds like nothing so much as a winner at the Westminster Kennel Club’s dog show). There, the Court held that the First pamela s. karlan  Amendment bars states from providing additional funds to equalize the playing field for candidates who agree to forgo private contributions and accept public financing. Second, because Buckley protected candidates’ right to spend however much they can raise while limiting how they can raise it, the decision forced candidates to devote ever-increasing attention to fundraising at the expense of other activities, such as doing their jobs. By 2012, when the average winning campaign for a House seat cost roughly $1.5 million, members of Congress had to raise about $85 every hour of every day during their two-year terms. The framers’ idea that frequent elections would make the House responsive to the people was turned on its head: frequent elections now render members of the House particularly dependent on special interest groups that can help them raise large amounts of money. A third effect of Buckley was harder to envision at the time of the Court’s decision, and has proven  a constitution for all times even more pernicious. Even as the Court was upholding FECA’s disclosure rules—which require candidates for federal office to identify all individuals who contribute more than $200 in an election cycle— its decision was driving money into new, and less accountable, channels. Prior to Watergate, political spending typically took the form of contributions to candidates or political parties. The corrosive effects of that money were at least tempered by strong incentives for candidates and parties to build coalitions and to focus on a range of issues. And voters had the opportunity to hold those candidates accountable for the way they raised and spent that money. After Buckley, money flowed away from candidates and political parties and toward political action committees (PACs). PACs originated in a 1940s effort by unions to coordinate individual contributions from their members, and their number and influence exploded thanks to Buckley. PACs present a serious challenge to the health of the political system pamela s. karlan  because, in contrast to parties, they frequently focus on only a single issue. They can form and dissolve within individual election cycles. They often have names that obscure more than they reveal, so that it is difficult for voters to intelligently assess the signals that PAC spending sends. The Buckley framework transformed PACs. The original PACs were designed to funnel money to candidates. But because contributions by PACs to candidates, like contributions by individuals, could be strictly limited, PACs turned to making “independent expenditures,” which, in Buckley, the Supreme Court had refused to limit because it saw no risk of corruption. “Independent,” however, is a...